Introduction

"Let me quickly review some of the more significant forms of commons-based law that commoners are putting forward these days.

In the global South, in order to subsistence commons, some indigenous peoples have been rallying around a legal instrument known as “biocultural protocols,” which the South African group Natural Justice developed. The protocols are seen as a way to protect indigenous peoples from the market enclosures that would otherwise be sanctioned by international trade treaties, by declaring agro-ecological and cultural practices off-limits to markets and trade.

In India, ever since its Supreme Court formally recognized commons in a landmark 2012 ruling, Indians have been attempting to work out the legal and political implications of managing all sorts of commons such as forests, farmland and water. There are also fascinating legal innovations such as the Potato Park in Peru, which gives indigenous peoples near Cusco the right to manage their “agroecological heritage landscape.”

Stakeholder trusts are a new frontier of legal innovation, especially in the US. These are state-chartered trusts to collect, manage and distribute revenues from natural resources such as oil, water, minerals and forests. The great precedent for this is the Alaska Permanent Fund, which generates about US$1,000 a year for every resident of Alaska – a rare source of non-wage income for ordinary people. Commons scholar Peter Barnes has expanded this idea to apply to many other common assets, in his book, Liberty and Dividends for All in an attempt to deal concretely, and with direct cash payments, to address in inequality.

New sorts of legal frameworks for digital commons are a robust field of innovation as well. There is now an attempt to move beyond copyright based licenses on open platforms, such as the GPL and Creative Commons licenses, to enable digital communities to retain for themselves the surplus value that they create. Michel Bauwens of the P2P Foundation has proposed commons-based reciprocity licenses – of what he calls CopyFair – to ensure that digital communities can reap any monetization of their content from commercial users, while allowing non-commercial users to continue to use the work for free. In a similar fashion, there are now efforts afoot to develop seed-sharing licenses so that farmers can protect their seeds from third parties who might appropriate and patent them.

The blockchain ledger, as pioneered by Bitcoin, may be one of the most revolutionary innovations in the Law of the Commons. This technology is significant because it allows digital identity authentication and secure transfers of assets without third-party guarantors like banks or governments. Although Bitcoin has used the blockchain ledger for standard libertarian, capitalist purposes, especially speculation, the technology can be used to facilitate social cooperation in radically new ways – in effect, moving law from the oral and written to digital media.

One important offshoot that many “computational lawyers” are working on is smart contracts, algorithm-based technologies that would new sorts of network-based contracts that could be negotiated on the fly, online, without the standard written contracts and lethargic court system. This, too, is an important realm of new types of commons-based law.

Co-operative law is another form of commons-based law that is reviving many little-used historical models while developing new types of governance. For example, there are many multistakeholder co-operatives in Italy and Quebec that go beyond worker and consumer co-op models, to empower third-parties to participate in such things as eldercare and social services.

The Sustainable Economies Law Center in Oakland, California, is exploring new forms of co-operative governance to empower members. Old forms like community land trusts and “garden cities” – in which the city owns the water systems, land and other infrastructure, which it mutualizes for everyone’s benefit – are experiencing a revival.

There are many important experiments in urban commons underway, many of which require legal innovation. One of the most significant is the Bologna Regulation in Bologna, Italy, which is remaking local government by inviting ordinary citizens and neighborhoods to self-organize their own projects – urban agriculture, care of public spaces, parent-run kindergartens, “social street” programs – which the city then helps. The city now has more than 90 “pacts of cooperation” with self-nominated groups in three thematic areas – “living together, growing together and making together.”

Along the same lines, a San Francisco-based group called Shareable has developed a series of papers outlining “Shareable Cities” policies, which are aimed at helping city governments work with residents to develop “sharing projects” ranging from car-sharing to tool-sharing to neighborhood services. A number of cities such as Linz, Austria, are pioneering open digital platforms for urban renewal by making all sorts of information available online for free.

I have not yet mentioned the many new legal initiatives attempting to strengthen local self-determination, mostly through community ordinances and so-called community charters. There are also new organizational forms such as “omni-commons,” which provide administrative, fiscal and legal assistance to help incubate small enterprises with a commons orientation.

At an even larger level, there are many legal initiatives underway attempting to re-imagine governance according to commons principles. Some of these look to the public trust doctrine in environmental law to uphold the interests of commoners, as in a series of lawsuits seeking to force governments to deal with climate change. Others, such as a project by some Italian jurists, are trying to establish a human right of people to access and use common assets, protecting them from market enclosure. Just a few months ago, French legal scholars held a conference on European juridicial strategies for the commons.

We are seeing a remarkable burst of creativity to find new structures of law – in contract law, trusts, co-operative law, municipal government, copyright and patents, organizational charters, and more – to protect the social practices of commoning and the values it stands for.

What is this all about, ultimately? It’s about honoring the sovereignty of people to devise their own forms of governance to meet their needs and local context. It’s about the importance of bottom-up initiatives and participation, and of transparency and accountability. It’s about meeting people’s needs without relying on the dysfunctional formalities of bureaucracy, the market/state duopoly of power, or the social inequities associated with markets."
(http://bollier.org/blog/property-rights-inequality-and-commons)

Tommasso Fattori on the need for Public-Commons Partnerships

"We also need a more general recognition and a flexible system of legal protection for commoning activities and for the products of collective creativity: the state and institutions must take an active role in supporting commoning and to support the creation of new Commons.

This active role must translate into forms of Public - Common Partnership, where the institutions enable and empower the collective/social peer-creation of common value. Governments could also provide seed funding, incentives and grants for Commons and commoning, just as it currently provides research and development support and assistance to businesses and corporations.

The drafting of one of more Charters of Commons must offer a broad range of forms of protection, which would go for example from the definition of special statutes for the safeguarding of biodiversity or of traditional knowledge to laws defending the collective interests of digital communities. At the same time a series of legal tools aiming to keep the results of collective creation under the control of the collectivity which produced them have been built and invented by the commoners themselves, for example by altering the legal tools which were originally designed to protect private property, redirecting them towards the protection of Commons, as has been the case with GPL and CC licenses, the product of a transformation and a turning onto their head of the logic of laws governing copyright.

The legal recognition of the sphere of Commons must lead to a delegation of authority and power by the state to commons-based institutions. That is to say, the constitution of self-regulating commons-based institutions must be authorized, protected and legally recognised (starting with the recognition of those which already exist.), through which commoners can protect, produce and reproduce Commons and common value.

Current debates (and experiments) focus on Trusts, Foundations, For-Benefit Institutions etc. Commons Trusts are normally considered legal entities responsible for protecting shared assets, and which have a fiduciary duty to preserve natural and material commons - such as natural systems, water, air, land, and biodiversity - and to protect, regenerate or create social, cultural, digital and intellectual Commons, such as Wikipedia and the Internet itself. Such trusts can be located either inside the boundaries of one state or be trans-border, according to the size and range of the resource and/or of its relative community of interest. Finally, it is probably not sufficient to stop at meta-institutions designed to preserve and protect the common destiny of a Commons over time and prevent its alienation. Just as it is true that commoning normally produces use value which cannot be accounted for in monetary terms (values which are part of the range of positive social or environmental externalities) one should construct a special legal form which could recognise and protect a similar type of enterprise or “project” (a common social enterprise) and protect a similar form of production of use value of collective use, which will help build another type of economy."

Key Initiatives

Worthy of Support:

"The Commons Law Project is an ecological governance initiative that Professor Weston and I are pursuing in cooperation with The University of Iowa Center for Human Rights (UICHR) and the Vermont Law School Environmental Law Center (VLS-ELC). Rights-based and commons driven, the Project seeks to recover and refurbish the law of the commons from Roman times, the Magna Carta, and points before and since to put forward a new contemporary law of the ecological commons grounded in human rights.

Specialized Commons Law, by Domain of Application

Key Topics

Technology and the Law

From Primavera De Filippi on Integration of Law and Computer Technology:

"The marriage of law and technology in the late 20th and early 21st century can be divided into three phases.

Phase one involved digitizing information itself: taking paper and ink and storing as computer readable information. That phase is well under way: copies of cases, statutes, and regulations have been available on-line for decades in large databases, accessible at first for a fee, and now mostly for free. Yet, there is a big difference between digitized information (that can be stored and displayed on a computer) and semantically meaningful information (that can be also processed and understood by a computer).

Phase two has involved automating decision-making. Much legal informatics research to date has focused on transforming legal provisions into computer code. This is a hard project for many reasons, including the ambiguity of the human language and the need for legal norms to be flexible and fact dependent. Despite these challenges (and limitations) government institutions and businesses worldwide increasingly rely on rule-based representations of specific knowledge domains - such as health care, tax and financial regulations - for automated decision-making (see e.g. specific tools for taxation, accounting and credit-score assessment).

Phase three - which is just beginning - involves self-enforcing smart contracts. We are moving quickly towards a system where technology will not only aid in decision-making but will also be employed to enforce rules. A notable example can be found in Digital Rights Management systems which incorporate the provisions of copyright law into technological measures of protection. But technology can also implement its own technical rules, which do not reflect any underlying legal rule. In order to be legally enforceable, these rules need to be wrapped-up into a legal framework capable of making smart contracts actionable under the law. A lot of work has yet to be done in that area."
([1])

* Article: Blockchain technology as a regulatory technology: From Code is Law to Law is Code. By Primavera De Filippi, Samer Hassan. First Monday, Volume 21, Number 12 - 5 December 2016

DEFENSIVE PUBLICATION Defensive publications, which are endorsed by the USPTO as an IP rights management tool, are documents that provide descriptions and artwork of a product, device or method so that it enters the public domain and becomes prior art. This powerful preemptive disclosure prevents other parties from obtaining a patent on the product, device or method. It enables the original inventor to ensure that they have access to their invention by preventing others from later making patent claims on it. It also means that they do not have to shoulder the cost of patent applications.

The Defensive Publications program, a component of Linux Defenders, enables non-attorneys to use a set of Web-based forms to generate defensive publications. It relies on substantial participation from the open source community as it relates to disclosures. Defensive publication drafts will be reviewed and edited as needed and at no charge by OIN's attorneys. The completed defensive publication will be added by OIN to the IP.com Prior Art Database, which is in turn used by IP attorneys and the patent and trademark office to search for prior art when examining patent applications. http://disclosures.linuxdefenders.org/

The Law and the Commons

On the importance of Social Charters: "Several legal frameworks exist for the protection of commons, including public domain law, public trust, human rights, and international treaties and conventions. However, these legal frameworks pertain mainly to the provision and allocation of public goods, thus requiring sovereign approval and oversight. Social charters stem from the tradition of customary or natural law, which means that they are created by the users and producers of a commons and are not dependent upon state consent." [2]

"In this new series on Shareable, "Law: The invisible architecture of the commons," we will showcase new and emerging legal institutions that offer an alternative system of incentives for encouraging cooperation, sharing, and sustainability. These legal institutions demonstrate how citizens, working together with lawyers and policymakers, can successfully design legal institutions for themselves to decommodify our access to fundamental resources, alter the wage labor relationship through new types of legal entities, and create new ways of stimulating ownership, innovation, and collaboration around knowledge goods." (https://www.shareable.net/blog/law-the-invisible-architecture-of-the-commons)